IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 616 of 2009()
1. M.D. THOMAS, MANAGER,
... Petitioner
Vs
1. OMANA, W/O. PUTHOOR KURIAKOSE,
... Respondent
2. MRS.MARY, W/O. LATE CHIRIYNAKANDATH
3. JAISON, S/O. CHIRAYANKANDATH
4. JOHNSON, S/O. CHIRIYNAKANDATH
5. STATE OF KERALA, REP. BY
For Petitioner :SRI.T.G.RAJENDRAN
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/07/2009
O R D E R
THOMAS P.JOSEPH, J.
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CRL. R.P. NO.616 2009
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Dated this the 17th day of July, 2009
O R D E R
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This revision is directed against order dated 15.11.2008 as per
which learned Judicial First Class Magistrate, Chavakkad has taken
cognizance against petitioner as well for offences punishable under
Sections 463, 467 and 468 read with 34 of the Indian Penal Code (for
short, “the IPC”). According to respondent No.1, her father had availed
a locker facility in the South Indian Bank of which petitioner (accused
No.4) is the Manager, for the purpose of keeping gold ornaments in
safe custody and after death of her father on 25.7.2006 a
nomination paper was forged by accused Nos.1 to 3 with the
connivance and sharing common intention with the petitioner as if
the nomination was made by the father before his death in the name
of mother of respondent No.1. It is accordingly that petitioner was
also sought to be impleaded for offences as above stated. It is seen
from the order that on a prior occasion without conducting enquiry
under Sec.202 of the Criminal Procedure Code (for short,”the Code”)
learned magistrate “dismissed” the complaint under Sec.203 of the
Code. That dismissal was challenged by respondent No.1 in this Court
in Crl.R.P. No.116 of 2008. Learned counsel for petitioner submitted
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that petitioner was not given notice of that proceeding. On
26.5.2008 this Court set aside the dismissal of the complaint one of
the reasons being that under Sec.203 of the Code a dismissal is
contemplated only after conducting enquiry under Sec.202 of the
Code. While remitting the complaint to the court below it was
directed that learned magistrate shall proceed in accordance with law.
Later, enquiry was conducted under Sec.202 of the Code and as per
the impugned order cognisance was taken as aforesaid. Petitioner
states that on the materials on record there was no scope for taking
cognisance against him and therefore requests this Court to interfere
with the order to the extent it concerned him. Learned counsel for
respondent No.1 submitted that there are sufficient materials available
on record to take cognisance against petitioner also.
2. At this stage it is not necessary to go into the question
whether sufficient materials are produced by respondent No.1 as
regards the alleged involvement of petitioner. Since offences under
Secs.463, 467 and 468 of the IPC are attributed against petitioner and
other accused persons learned magistrate has to follow the procedure
for trial of warrant cases instituted otherwise than on police report.
That means petitioner gets an opportunity to seek his discharge under
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sub-sec.(1) or (2) of Sec.245 of the Code. It is open to the petitioner
to avail that opportunity as stated therein. Learned counsel submits
that in that case petitioner may be permitted to appear through
counsel in the court below until the court decides to frame charge
against petitioner. Having regard to the facts and circumstances of
the case I find no reason to refuse that prayer.
Resultantly, this revision petition fails. It is dismissed making it
clear that it will be open to the petitioner to seek his discharge if
circumstances warranted invoking sub-sec.(1) or (2) of Sec.245 of the
Code. Petitioner is permitted to appear in the court below through
counsel until framing of charge, if any.
THOMAS P.JOSEPH, JUDGE.
vsv